Common use of Infringement by Third Party Clause in Contracts

Infringement by Third Party. 6.1 Caltech shall protect the Licensed Patent Rights from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech with evidence of infringement of Licensed Patent Rights by a third party, Licensee may by notice request Caltech to take steps to enforce the Licensed Patent Rights. If Licensee does so, and Caltech does not, within fifteen (15) days of the receipt of such notice, either (a) cause the infringement to terminate or (b) initiate a legal action against the infringer, Licensee may, upon notice to Caltech, initiate an action against the infringer at Licensee's expense, either in Licensee's name or in Caltech's name if so required by law. 6.3 If a declaratory judgment action alleging invalidity, unenforceability or infringement of any of the Licensed Patent Rights is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall have sole control of the action if Licensee agrees to bear all the costs of the action subject to Article 6.8. 6.4 In the event one party shall carry on a legal action pursuant to Paragraphs 6.1, 6.2 or 6.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such action, including by using its best efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's reasonable and customary expenses for such action (including attorneys' fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses be credited against more than fifty percent (50%) of royalty payments to Caltech. Any excess such expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other party. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 Any amounts paid to a party by third parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' fees) incurred by either party and then to the payment to Caltech of any royalties against which were credited expenses of the action in

Infringement by Third Party. 6.1 Caltech 7.1 Licensee shall at its expense, have the first right but not the obligation to protect the Licensed Patent Rights from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 7.2 If Licensee Caltech shall have supplied Caltech Licensee with evidence of infringement of Licensed Patent Rights or patents claiming an Improvement by a third party, Licensee Caltech may by notice request Caltech Licensee to take steps to enforce the Licensed Patent Rights. If Licensee Caltech does so, and Caltech Licensee does not, within fifteen three (153) days months of the receipt of such notice, either (ai) cause the infringement to terminate or (bii) initiate a legal action against the infringer, Licensee Caltech may, upon notice to Caltechand approval of Licensee, initiate an action against the infringer at Licensee's Caltech’s expense, either in Licensee's ’s name or in Caltech's ’s name if so required by law. Caltech shall have sole control of the action. 6.3 7.3 If a declaratory judgment action alleging invalidity, unenforceability or infringement noninfringement of any of the Licensed Patent Rights or patents claiming an Improvement is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall may elect to have sole control of the action action, and if Licensee agrees to so elects it shall bear all the costs of the action subject to Article 6.8action. 6.4 7.4 In the event one party shall institute or carry on a legal action pursuant to Paragraphs 6.17.1, 6.2 7.2 or 6.37.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party instituting or carrying on such action, including by using its best commercially reasonable efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 7.1, 7.2 or 6.3 7.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party instituting or carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's ’s reasonable and customary expenses for such action (including attorneys' ’ fees and expert fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses to be credited against more than fifty percent (50%) [**] of royalty payments to Caltech. Any excess such remaining expenses may be carried over and credited against royalties owed in future years. 6.5 7.5 The party controlling any action referred to in this Article 6 7 shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyparty hereto. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 7.6 Any amounts paid to a party by third parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either each party and then to the payment to Caltech of any royalties against which were credited expenses of the action inin accordance with Paragraph 7.4. Any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, Licensee shall retain the remainder, less the amount of any royalties that would have been due Caltech on sales of Licensed Product lost by Licensee as a result of the infringement had Licensee made such sales, provided that Licensee shall in any event retain at least XXXXXXXXXXXXXXXX of the remainder; and (ii) Caltech shall receive an amount equal to the royalties it would have received if such sales had been made by Licensee, provided such amount shall in no event exceed XXXX XXXXXXXXX of the remainder; or (b) To the extent the amount recovered does not reflect lost profits, XXXXXX XXXXXXXX shall be paid to the party initiating the action and XXXXXXXXXXX to the other party. 7.7 If an infringement or infringements by third parties of Licensed Patent Rights is on a scale that significantly affects sales of Licensed Products, and neither Caltech nor Licensee elect to bring an infringement suit against the infringers, the royalties hereunder payable by Licensee pursuant to Article 4 shall be reduced by XXXXXXXXXXXXXXXXXXX of the sums otherwise payable if Licensee presents information to Caltech that such infringer has refused to enter into a royalty-bearing, sublicensing agreement with Licensee on terms reasonably acceptable to Licensee. 7.8 The allowed reductions set forth in Paragraph 7.7 and Paragraph 4.6 shall not exceed, in the aggregate, XXXXXXXXXXXXXX of the sums otherwise payable during any year.

Infringement by Third Party. 6.1 7.1 Both Caltech shall protect and Licensee agree to notify the Licensed Patent Rights from infringement and prosecute infringers when, other in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech with evidence writing should either party become aware of infringement of Licensed Patent Rights by a third party, Licensee may by notice request Caltech to take steps to enforce the Licensed Patent RightsPatents. If Licensee does so, and Caltech does not, within fifteen (15) days of the receipt of such notice, either (a) cause the infringement to terminate or (b) initiate a legal action against the infringer, Licensee mayLicensee, upon notice to Caltech, shall have the sole right to initiate an action against the infringer at Licensee's ’s expense, either in Licensee's ’s name or in Caltech's ’s name if so required by law, Licensee shall have sole control of the action. 6.3 7.2 If Licensee, its Affiliate or Sublicensee, distributor or other customer is sued by a third party charging infringement of patent rights that dominate a claim of the Licensed Patents or that cover the development, manufacture, use, distribution or sale of a Licensed Product, Licensee will promptly notify Caltech. As between the parties to this Agreement, Licensee shall have sole control of the defense in any such action(s). 7.3 If a declaratory judgment action alleging invalidity, invalidity unenforceability or infringement noninfringement of any of the Licensed Patent Rights Patents is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall may elect to have sole control of the action action, and if Licensee agrees to so elects it shall bear all the costs of the action. Licensee also may elect to undertake and have sole control of the defense of any interference, opposition or similar action subject with respect to Article 6.8the Licensed Patents providing it bears all the costs of such action. 6.4 7.4 In the event one party shall carry on Licensee institutes a legal action pursuant to Paragraphs 6.1Section 7.1, 6.2 or 6.3within thirty (30) days after receipt of notice of Licensee’s intent to institute such legal action, Caltech shall have the other party right to jointly prosecute such action and to fund up to one-half ( 1/2) the costs of such action. Caltech shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such actionLicensee, including by using its best commercially reasonable efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 Licensee shall bear the reasonable expenses incurred by said other party Caltech in providing such assistance and cooperation as is requested pursuant to this ParagraphSection 7.4. A party carrying on such an action Licensee shall keep the other party Caltech reasonably informed of the progress of such the legal action, and said other party Caltech shall be entitled to be represented by counsel in connection with such legal action at its own expense. To Licensee’s [***] Information has been omitted and filed separately with the extent not reimbursed Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Confidential Treatment Requested by Caltech, Licensee's Fluidigm Corporation reasonable and customary expenses for such action (including attorneys' ’ fees and expert fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses to be credited against more than fifty percent (50%) [***] of royalty payments to Caltech. Any excess such remaining expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 7.5 Licensee shall have the right light to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyCaltech. Should either party Licensee elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other partyCaltech, the party controlling the action Licensee shall give timely notice to the other party Caltech who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 7.6 Any amounts paid to a party Licensee by third parties as the result of such an action pursuant to this Article 7 (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party Licensee and then to the payment to Caltech of any royalties against which were credited expenses of the action inin accordance with Section 7.4. Any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, Licensee shall retain the remainder, less the amount of any royalties that would have been due Caltech on sales of Licensed Product lost by Licensee as a result of the infringement had Licensee made such sales, provided that (i) Licensee shall in any event retain at least [***] of the remainder; and (ii) Caltech shall receive an amount equal to the royalties it would have received if such sales had been made by Licensee, provided such amount shall in no event exceed [***] of the remainder; or (b) To the extent the amount recovered does not reflect lost profits, such amount shall be shared by Caltech and Licensee pro rata according to the respective percentages of costs borne by each in such action; provided, however, that in no event shall Caltech receive less than twenty-five percent (25%) of such amount. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Confidential Treatment Requested by Fluidigm Corporation

Infringement by Third Party. 6.1 Caltech AZM shall at its expense, have the first right but not the obligation to protect the Licensed Patent Rights from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech AZM with evidence of infringement of Licensed Patent Rights or patents by a third party, Licensee may by notice request Caltech AZM to take steps to enforce the Licensed Patent Rights. If Licensee does so, and Caltech AZM does not, within fifteen three (153) days months of the receipt of such notice, either (ai) cause the infringement to terminate or (bii) initiate a legal action against the infringer, Licensee may, upon notice to Caltechand approval of AZM, initiate an action against the infringer at Licensee's ’s expense, either in Licensee's ’s name or in Caltech's AZM’s name if so required by law. Licensee shall have sole control of the action. 6.3 If a declaratory judgment action alleging invalidity, unenforceability or infringement noninfringement of any of the Licensed Patent Rights is brought against Licensee and/or CaltechAZM, Caltech shall defend same in accordance with Section 6. 1. Licensee shall may elect to have sole control of the action action, and if Licensee agrees to so elects it shall bear all the costs of the action subject to Article 6.8action. 6.4 In the event one party shall institute or carry on a legal action pursuant to Paragraphs 6.1, 6.2 or 6.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party instituting or carrying on such action, including by using its best commercially reasonable efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party instituting or carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's reasonable and customary expenses for such action (including attorneys' fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses be credited against more than fifty percent (50%) of royalty payments to Caltech. Any excess such expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyparty hereto. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 Any amounts paid to a party by third parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party and then each party. Any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits or royalties, Licensee shall retain the remainder; and (b) To the extent the amount recovered does not reflect lost profits, sixty percent (60%) shall be paid to the payment party initiating the action and forty percent (40%) to Caltech the other party. 6.7 If an infringement or infringements by third parties of any royalties Licensed Patent Rights is on a scale that significantly affects sales of Licensed Products, and neither AZM nor Licensee elect to bring an infringement suit against which were credited expenses the infringers, the license fees hereunder payable by Licensee pursuant to Paragraph 3.2 shall be reduced by twenty-five percent (25%) of the action insums otherwise payable if Licensee presents information to AZM that such infringer has refused to enter into a royalty-bearing, sublicensing agreement with Licensee on terms reasonably acceptable to Licensee.

Infringement by Third Party. 6.1 Caltech shall protect the Licensed Patent Rights from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech with evidence of infringement of Licensed Patent Rights by a third party, Licensee may by notice request Caltech to take steps to enforce the Licensed Patent Rights. If Licensee does so, and Caltech does not, within fifteen (15) days of the receipt of such notice, either (a) cause the infringement to terminate or (b) initiate a legal action against the infringer, Licensee may, upon notice to Caltech, initiate an action against the infringer at Licensee's expense, either in Licensee's name or in Caltech's name if so required by law. 6.3 If a declaratory judgment action alleging invalidity, unenforceability or infringement of any of the Licensed Patent Rights is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall have sole control of the action if Licensee agrees to bear all the costs of the action subject to Article 6.86. 6.4 In the event one party shall carry on a legal action pursuant to Paragraphs 6.1, 6.2 or 6.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such action, including by using its best efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's reasonable and customary expenses for such action (including attorneys' fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses be credited against more than fifty percent (50%) of royalty payments to Caltech. Any excess express such expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other party. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, . may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall shall. be as agreed upon upon. between the parties. 6.6 Any amounts paid to a party by third third-parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' fees) incurred by either party and then to the payment to Caltech of any royalties against which were credited expenses of the action inin accordance with Paragraph 6.

Infringement by Third Party. 6.1 Caltech 6.1. CALTECH shall at its expense, have the first right but not the obligation to protect the Licensed Patent Rights and patents claiming Improvements from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee LICENSEE shall have the right to Sublicense sublicense any alleged infringer pursuant to Paragraph 2.12.1 and 2.2. 6.2 6.2. If Licensee LICENSEE shall have supplied Caltech CALTECH with evidence of infringement of Licensed Patent Rights or patents claiming an Improvement by a third party, Licensee LICENSEE may by notice request Caltech CALTECH to take steps to enforce the Licensed Patent Rights. If Licensee LICENSEE does so, and Caltech CALTECH does not, within fifteen three (153) days months of the receipt of such notice, either (ai) cause the infringement to terminate or (bii) initiate a legal action against the infringer, Licensee LICENSEE may, upon notice to CaltechCALTECH, initiate an action against the infringer at Licensee's LICENSEE’s expense, either in Licensee's LICENSEE’s name or in Caltech's CALTECH’s name if so required by law. LICENSEE shall have sole control of the action. 6.3 6.3. If a declaratory judgment action alleging invalidity, unenforceability or infringement noninfringement of any of the Licensed Patent Rights or Improvements is brought against Licensee LICENSEE and/or CaltechCALTECH, Caltech shall defend same in accordance with Section 6. 1. Licensee LICENSEE shall have sole control of the action if Licensee LICENSEE agrees to bear all the costs of the action subject to Article 6.8action. 6.4 6.4. In the event one party shall carry on a legal action pursuant to Paragraphs 6.1, 6.2 or 6.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such action, including by using its best efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's reasonable and customary expenses for such action (including attorneys' fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses be credited against more than fifty percent (50%) of royalty payments to Caltech. Any excess such expenses may be carried over and credited against royalties owed in future years. 6.5 6.5. The party controlling any action referred to in this Article 6 VI shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyparty hereto. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 6.6. Any amounts paid to a party by third parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party and then any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, LICENSEE shall retain the remainder; or (b) To the extent the amount recovered does not reflect lost profits * shall be paid to the payment to Caltech of any royalties against which were credited expenses of party initiating the action inand * to the other party.

Infringement by Third Party. 6.1 7.1 Both Caltech shall protect and Licensee agree to notify the Licensed Patent Rights from infringement and prosecute infringers when, other in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech with evidence writing should either party become aware of infringement of Licensed Patent Rights by a third party, Licensee may by notice request Caltech to take steps to enforce the Licensed Patent RightsPatents. If Licensee does so, and Caltech does not, within fifteen (15) days of the receipt of such notice, either (a) cause the infringement to terminate or (b) initiate a legal action against the infringer, Licensee mayLicensee, upon notice to Caltech, shall have the sole right to initiate an action against the infringer at Licensee's ’s expense, either in Licensee's ’s name or in Caltech's ’s name if so required by law, Licensee shall have sole control of the action. 6.3 7.2 If Licensee, its Affiliate or Sublicensee, distributor or other customer is sued by a third party charging infringement of patent rights that dominate a claim of the Licensed Patents or that cover the development, manufacture, use, distribution or sale of a Licensed Product, Licensee will promptly notify Caltech. As between the parties to this Agreement, Licensee shall have sole control of the defense in any such action(s). 7.3 If a declaratory judgment action alleging invalidity, invalidity unenforceability or infringement noninfringement of any of the Licensed Patent Rights Patents is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall may elect to have sole control of the action action, and if Licensee agrees to so elects it shall bear all the costs of the action. Licensee also may elect to undertake and have sole control of the defense of any interference, opposition or similar action subject with respect to Article 6.8the Licensed Patents providing it bears all the costs of such action. 6.4 7.4 In the event one party shall carry on Licensee institutes a legal action pursuant to Paragraphs 6.1Section 7.1, 6.2 or 6.3within thirty (30) days after receipt of notice of Licensee’s intent to institute such legal action, Caltech shall have the other party right to jointly prosecute such action and to fund up to one-half (½) the costs of such action. Caltech shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such actionLicensee, including by using its best commercially reasonable efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 Licensee shall bear the reasonable expenses incurred by said other party Caltech in providing such assistance and cooperation as is requested pursuant to this ParagraphSection 7.4. A party carrying on such an action Licensee shall keep the other party Caltech reasonably informed of the progress of such the legal action, and said other party Caltech shall be entitled to be represented by counsel in connection with such legal action at its own expense. To the extent not reimbursed by Caltech, Licensee's ’s reasonable and customary expenses for such action (including attorneys' ’ fees and expert fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses to be credited against more than fifty percent (50%) [***] of royalty payments to Caltech. Any excess such remaining expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 7.5 Licensee shall have the right light to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyCaltech. Should either party Licensee elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other partyCaltech, the party controlling the action Licensee shall give timely notice to the other party Caltech who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 7.6 Any amounts paid to a party Licensee by third parties as the result of such an action pursuant to this Article 7 (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party Licensee and then to the payment to Caltech of any royalties against which were credited expenses of the action inin accordance with Section 7.4. Any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, Licensee shall retain the remainder, less the amount of any royalties that would have been due Caltech on sales of Licensed Product lost by Licensee as a result of the infringement had Licensee made such sales, provided that (i) Licensee shall in any event retain at least [***] of the remainder; and (ii) Caltech shall receive an amount equal to the royalties it would have received if such sales had been made by Licensee, provided such amount shall in no event exceed [***] of the remainder; or (b) To the extent the amount recovered does not reflect lost profits, such amount shall be shared by Caltech and Licensee pro rata according to the respective percentages of costs borne by each in such action; provided, however, that in no event shall Caltech receive less than twenty-five percent (25%) of such amount.

Infringement by Third Party. 6.1 7.1 Both Caltech shall protect and Licensee agree to notify the Licensed Patent Rights from infringement and prosecute infringers when, other in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech with evidence writing should either party become aware of infringement of Licensed Patent Rights by a third party, Licensee may by notice request Caltech to take steps to enforce the Licensed Patent RightsPatents. If Licensee does so, and Caltech does not, within fifteen (15) days of the receipt of such notice, either (a) cause the infringement to terminate or (b) initiate a legal action against the infringer, Licensee mayLicensee, upon notice to Caltech, shall have the sole right to initiate an action against the infringer at Licensee's ’s expense, either in Licensee's ’s name or in Caltech's ’s name if so required by law, Licensee shall have sole control of the action. 6.3 7.2 If Licensee, its Affiliate or Sublicensee, distributor or other customer is sued by a third party charging infringement of patent rights that dominate a claim of the Licensed Patents or that cover the development, manufacture, use, distribution or sale of a Licensed Product, Licensee will promptly notify Caltech. As between the parties to this Agreement, Licensee shall have sole control of the defense in any such action(s). 7.3 If a declaratory judgment action alleging invalidity, invalidity unenforceability or infringement noninfringement of any of the Licensed Patent Rights Patents is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall may elect to have sole control of the action action, and if Licensee agrees to so elects it shall bear all the costs of the action. Licensee also may elect to undertake and have sole control of the defense of any interference, opposition or similar action subject with respect to Article 6.8the Licensed Patents providing it bears all the costs of such action. 6.4 7.4 In the event one party shall carry on Licensee institutes a legal action pursuant to Paragraphs 6.1Section 7.1, 6.2 or 6.3within thirty (30) days after receipt of notice of Licensee’s intent to institute such legal action, Caltech shall have the other party right to jointly prosecute such action and to fund up to one-half ( 1/2) the costs of such action. Caltech shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such actionLicensee, including by using its best commercially reasonable efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 Licensee shall bear the reasonable expenses incurred by said other party Caltech in providing such assistance and cooperation as is requested pursuant to this ParagraphSection 7.4. A party carrying on such an action Licensee shall keep the other party Caltech reasonably informed of the progress of such the legal action, and said other party Caltech shall be entitled to be represented by counsel in connection with such legal action at its own expense. To the extent not reimbursed by Caltech, Licensee's ’s reasonable and customary expenses for such action (including attorneys' ’ fees and expert fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses to be credited against more than fifty percent (50%) [***] of royalty payments to Caltech. Any excess such remaining expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 7.5 Licensee shall have the right light to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyCaltech. Should either party Licensee elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other partyCaltech, the party controlling the action Licensee shall give timely notice to the other party Caltech who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 7.6 Any amounts paid to a party Licensee by third parties as the result of such an action pursuant to this Article 7 (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party Licensee and then to the payment to Caltech of any royalties against which were credited expenses of the action inin accordance with Section 7.4. Any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, Licensee shall retain the remainder, less the amount of any royalties that would have been due Caltech on sales of Licensed Product lost by Licensee as a result of the infringement had Licensee made such sales, provided that (i) Licensee shall in any event retain at least [***] of the remainder; and (ii) Caltech shall receive an amount equal to the royalties it would have received if such sales had been made by Licensee, provided such amount shall in no event exceed [***] of the remainder; or (b) To the extent the amount recovered does not reflect lost profits, such amount shall be shared by Caltech and Licensee pro rata according to the respective percentages of costs borne by each in such action; provided, however, that in no event shall Caltech receive less than twenty-five percent (25%) of such amount.

Infringement by Third Party. 6.1 Caltech CALTECH shall at its expense, have the first right but not the obligation to protect the Licensed Patent Rights and patents claiming Improvements from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee LICENSEE shall have the right to Sublicense sublicense any alleged infringer pursuant to Paragraph 2.12.1 and 2.2. 6.2 If Licensee LICENSEE shall have supplied Caltech CALTECH with evidence of infringement of Licensed Patent Rights or patents claiming an Improvement by a third party, Licensee LICENSEE may by notice request Caltech CALTECH to take steps to enforce the Licensed Patent Rights. If Licensee LICENSEE does so, and Caltech CALTECH does not, within fifteen three (153) days months of the receipt of such notice, either (ai) cause the infringement to terminate or (bii) initiate a legal action against the infringer, Licensee LICENSEE may, upon notice to CaltechCALTECH, initiate an action against the infringer at Licensee's LICENSEE’S expense, either in Licensee's LICENSEE’S name or in Caltech's CALTECH’s name if so required by law. LICENSEE shall have sole control of the action. 6.3 If a declaratory judgment action alleging invalidity, unenforceability or infringement noninfringement of any of the Licensed Patent Rights or Improvements is brought against Licensee LICENSEE and/or CaltechCALTECH, Caltech shall defend same in accordance with Section 6. 1. Licensee LICENSEE shall have sole control of the action if Licensee LICENSEE agrees to bear all the costs of the action subject to Article 6.8action. 6.4 In the event one party shall carry on a legal action pursuant to Paragraphs 6.1, 6.2 or 6.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such action, including by using its best efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's reasonable and customary expenses for such action (including attorneys' fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses be credited against more than fifty percent (50%) of royalty payments to Caltech. Any excess such expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 VI shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyparty hereto. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 Any amounts paid to a party by third parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party and then any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, LICENSEE shall retain the remainder; or (b) To the extent the amount recovered does not reflect lost profits, seventy percent (70%) shall be paid to the payment to Caltech of any royalties against which were credited expenses of party initiating the action inand thirty percent (30%) to the other party.

Infringement by Third Party. 6.1 Caltech CALTECH shall at its expense, have the first right but not the obligation to protect the Licensed Patent Rights and patents claiming Improvements from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee LICENSEE shall have the right to Sublicense sublicense any alleged infringer pursuant to Paragraph 2.12.1 and 2.2. 6.2 If Licensee LICENSEE shall have supplied Caltech CALTECH with evidence of infringement of Licensed Patent Rights or patents claiming an Improvement by a third party, Licensee LICENSEE may by notice request Caltech CALTECH to take steps to enforce the Licensed Patent Rights. If Licensee LICENSEE does so, and Caltech CALTECH does not, within fifteen three (153) days months of the receipt of such notice, either (ai) cause the infringement to terminate or (bii) initiate a legal action against the infringer, Licensee LICENSEE may, upon notice to CaltechCALTECH, initiate an action against the infringer at Licensee's LICENSEE’S expense, either in Licensee's LICENSEE’S name or in Caltech's CALTECH’s name if so required by law. LICENSEE shall have sole control of the action. 6.3 If a declaratory judgment action alleging invalidity, unenforceability or infringement noninfringement of any of the Licensed Patent Rights or Improvements is brought against Licensee LICENSEE and/or CaltechCALTECH, Caltech shall defend same in accordance with Section 6. 1. Licensee LICENSEE shall have sole control of the action if Licensee LICENSEE agrees to bear all the costs of the action subject to Article 6.8action. 6.4 In the event one party shall carry on a legal action pursuant to Paragraphs 6.1, 6.2 or 6.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such action, including by using its best efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's reasonable and customary expenses for such action (including attorneys' fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses be credited against more than fifty percent (50%) of royalty payments to Caltech. Any excess such expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 VI shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyparty hereto. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 Any amounts paid to a party by third parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party and then any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, LICENSEE shall retain the remainder; or (b) To the extent the amount recovered does not reflect lost profits, *** shall be paid to the payment to Caltech of any royalties against which were credited expenses of party initiating the action inand *** to the other party.

Infringement by Third Party. 6.1 Caltech shall at its expense, have the first right but not the obligation to protect the Licensed Patent Rights from infringement and prosecute infringers when, in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense sublicense the Licensed Patent Rights or Technology to any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech with evidence of infringement of Licensed Patent Rights or patents claiming an Improvement by a third party, Licensee may by notice request Caltech to take steps to enforce the Licensed Patent Rights. If Licensee does so, and Caltech does not, within fifteen (15) days [**] months of the receipt of such notice, either (ai) cause the infringement to terminate or (bii) initiate a legal action against the infringer, . Licensee may, upon notice to Caltech, initiate an action against the infringer at Licensee's ’s expense, either in Licensee's ’s name or in Caltech's ’s name if so required by law. Licensee shall have sole control of the action. 6.3 If a declaratory judgment action alleging invalidity, unenforceability or infringement noninfringement of any of the Licensed Patent Rights or patents claiming an Improvement is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall may elect to have sole control of the action action, and if Licensee agrees to so elects it shall bear all the costs of the action subject to Article 6.8action. 6.4 In the event one party shall institute or carry on a legal action pursuant to Paragraphs 6.1, 6.2 or 6.3, the other party shall fully cooperate with and supply all assistance reasonably requested by the party instituting or carrying on such action, including by using its best commercially reasonable efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 shall bear the reasonable expenses incurred by said other party in providing such assistance and cooperation as is requested pursuant to this Paragraph. A party instituting or carrying on such an action shall keep the other party informed of the progress of such action, and said other party shall be entitled to be represented by counsel in connection with such action at its own expense. To the extent not reimbursed by Caltech, Licensee's ’s reasonable and customary expenses for such action (including attorneys' ’ fees and expert fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses to be credited against more than fifty [**] percent (50[**]%) of royalty payments to Caltech. Any excess such remaining expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 shall have the right to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyparty hereto. Should either party elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other party, the party controlling the action shall give timely notice to the other party who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 Any amounts paid to a party by third parties as the result of such an action (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either each party and then to the payment to Caltech of any royalties against which were credited expenses of the action inin accordance with Paragraph 6.4. Any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, Licensee shall retain the remainder, less the amount of any royalties that would have been due Caltech on sales of Licensed Product lost by Licensee as a result of the infringement had Licensee made such sales, provided that Licensee shall in any event retain at least [**] percent ([**]%) of the remainder; and (ii) Caltech shall receive an amount equal to the royalties it would have received if such sales had been made by Licensee, provided such amount shall in no event exceed [**]percent ([**]%) of the remainder; or (b) To the extent the amount recovered does not reflect lost profits, [**] percent ([**]%) shall be paid to the party initiating the action and [**] percent ([**]%) to the other party. 6.7 If an infringement or infringements by third parties of Licensed Patent Rights is on a scale that significantly affects sales of Licensed Products, and neither Caltech nor Licensee elect to bring an infringement suit against the infringers, the royalties hereunder payable by Licensee pursuant to Article 3 shall be reduced by [**] percent ([**]%) of the sums otherwise payable if Licensee presents information to Caltech that such infringer has refused to enter into a royalty-bearing, sublicensing agreement with Licensee on terms reasonably acceptable to Licensee. 6.8 The allowed reductions set forth in Paragraph 6.7 and Paragraph 3.7 shall not exceed, in the aggregate, [**] percent ([**]%) of the sums otherwise payable during any year.

Infringement by Third Party. 6.1 7.1 Both Caltech shall protect and Licensee agree to notify the Licensed Patent Rights from infringement and prosecute infringers when, other in its sole reasonable judgment, such action may be reasonably necessary, proper and justified. Notwithstanding the foregoing, Licensee shall have the right to Sublicense any alleged infringer pursuant to Paragraph 2.1. 6.2 If Licensee shall have supplied Caltech with evidence writing should either party become aware of infringement of Licensed Patent Rights by a third party, Licensee may by notice request Caltech to take steps to enforce the Licensed Patent RightsPatents. If Licensee does so, and Caltech does not, within fifteen (15) days of the receipt of such notice, either (a) cause the infringement to terminate or (b) initiate a legal action against the infringer, Licensee mayLicensee, upon notice to Caltech, shall have the sole right to initiate an action against the infringer at Licensee's ’s expense, either in Licensee's ’s name or in Caltech's ’s name if so required by law, Licensee shall have sole control of the action. 6.3 7.2 If Licensee, its Affiliate or Sublicensee, distributor or other customer is sued by a third party charging infringement of patent rights that dominate a claim of the Licensed Patents or that cover the development, manufacture, use, distribution or sale of a Licensed Product, Licensee will promptly notify Caltech. As between the parties to this Agreement, Licensee shall have sole control of the defense in any such action(s). 7.3 If a declaratory judgment action alleging invalidity, invalidity unenforceability or infringement noninfringement of any of the Licensed Patent Rights Patents is brought against Licensee and/or Caltech, Caltech shall defend same in accordance with Section 6. 1. Licensee shall may elect to have sole control of the action action, and if Licensee agrees to so elects it shall bear all the costs of the action. Licensee also may elect to undertake and have sole control of the defense of any interference, opposition or similar action subject with respect to Article 6.8the Licensed Patents providing it bears all the costs of such action. 6.4 7.4 In the event one party shall carry on Licensee institutes a legal action pursuant to Paragraphs 6.1Section 7.1, 6.2 or 6.3within thirty (30) days after receipt of notice of Licensee’s intent to institute such legal action, Caltech shall have the other party right to jointly prosecute such action and to fund up to one-half ( 1/2) the costs of such action. Caltech shall fully cooperate with and supply all assistance reasonably requested by the party carrying on such actionLicensee, including by using its best commercially reasonable efforts to have its employees testify when requested and to make available relevant records, papers, information, samples, specimens, and the like. A party controlling an action pursuant to Paragraphs 6.2 or 6.3 Licensee shall bear the reasonable expenses incurred by said other party Caltech in providing such assistance and cooperation as is requested pursuant to this ParagraphSection 7.4. A party carrying on such an action Licensee shall keep the other party Caltech reasonably informed of the progress of such the legal action, and said other party Caltech shall be entitled to be represented by counsel in connection with such legal action at its own expense. To Licensee’s [***] Information has been omitted and filed separately with the extent not reimbursed by Caltech, Licensee's Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. reasonable and customary expenses for such action (including attorneys' ’ fees and expert fees) shall be fully creditable against royalties owed to Caltech hereunder, provided that in no one year shall such expenses to be credited against more than fifty percent (50%) [***] of royalty payments to Caltech. Any excess such remaining expenses may be carried over and credited against royalties owed in future years. 6.5 The party controlling any action referred to in this Article 6 7.5 Licensee shall have the right light to settle any claims, but only upon terms and conditions that are reasonably acceptable to the other partyCaltech. Should either party Licensee elect to abandon such an action other than pursuant to a settlement with the alleged infringer that is reasonably acceptable to the other partyCaltech, the party controlling the action Licensee shall give timely notice to the other party Caltech who, if it so desires, may continue the action; provided, however, that the sharing of expenses and any recovery in such suit shall be as agreed upon between the parties. 6.6 7.6 Any amounts paid to a party Licensee by third parties as the result of such an action pursuant to this Article 7 (such as in satisfaction of a judgment or pursuant to a settlement) shall first be applied to reimbursement of the unreimbursed expenses (including attorneys' ’ fees and expert fees) incurred by either party Licensee and then to the payment to Caltech of any royalties against which were credited expenses of the action inin accordance with Section 7.4. Any remainder shall be divided between the parties as follows: (a) To the extent the amount recovered reflects lost profits, Licensee shall retain the remainder, less the amount of any royalties that would have been due Caltech on sales of Licensed Product lost by Licensee as a result of the infringement had Licensee made such sales, provided that (i) Licensee shall in any event retain at least [***] of the remainder; and (ii) Caltech shall receive an amount equal to the royalties it would have received if such sales had been made by Licensee, provided such amount shall in no event exceed [***] of the remainder; or (b) To the extent the amount recovered does not reflect lost profits, such amount shall be shared by Caltech and Licensee pro rata according to the respective percentages of costs borne by each in such action; provided, however, that in no event shall Caltech receive less than twenty-five percent (25%) of such amount. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.